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Lizzol v. Brothers Property Management Corp.

United States District Court, D. New Hampshire

September 6, 2017

Jennifer Lizzol; Michael Lizzol; and T.G., Plaintiffs
Brothers Property Management Corporation; Out Back Kayak, Inc. OBK; and Martin Welch, Defendants Opinion No. 2017 DNH 183


          Steven J. McAuliffe, United States District Judge

         Plaintiffs have filed a motion to amend or alter the judgment that was entered dismissing their negligence claims, based on contractual waivers they signed. See Fed.R.Civ.P. 59(e). The seriousness of plaintiffs' injuries and the negligent conduct described in the complaint understandably move counsel to seek some way around the negligence waiver principles established in McGrath v. SNH Development, Inc., 158 N.H. 540 (2009). But there is no avoiding them in this case. New Hampshire law applies and it is not ambiguous. Having carefully considered plaintiffs' motion, the court is constrained to deny it.


         This case turns on the enforceability of contractual waivers of negligence claims that plaintiffs executed prior to participating in a guided snowmobile tour. During the tour plaintiffs' snowmobile crashed, causing them serious injuries. Defendants moved for summary judgment, asserting that plaintiffs' claims - all of which sound in negligence - are barred by the waivers they executed. In opposing defendants' motion, plaintiffs advanced five arguments:

(A) the Release does not apply to claims arising from negligent instruction or guidance on the trails; (B) the Release does not state with sufficient clarity that OBK is a party to the contract; (C) the Release is not enforceable against Jennifer Lizzol because she did not properly sign the contract; (D) the Release is unenforceable because it violates public policy; and (E) the Release is invalid because plaintiffs were fraudulently induced to sign.

         Plaintiffs' Objection to Summary Judgment (document no. 28-1) at 4. By prior order (document no. 30), the court addressed and rejected each of plaintiffs' arguments, concluding that: the Release was sufficiently broad to cover defendants' allegedly negligent instruction and guidance, id. at 7-11; the Release does apply to OBK, id. at 12-15; Jennifer Lizzol's “failure to initial certain paragraphs of the Release does not preclude its enforcement” against her, id. at 15; the Release is not unenforceable on grounds that it violates public policy, id. at 20-22; and “the plaintiffs have not sufficiently established fraud in the inducement, ” id. at 22. Accordingly, the court granted defendants' motion for summary judgment.

         In their motion to alter or amend judgment, plaintiffs assert that the court misapprehended their argument that the contractual waivers of negligence claims are unenforceable on public policy grounds. As a consequence, say plaintiffs, the court erred as a matter of law in granting defendants' motion for summary judgment. The court disagrees.

         Standard of Review

         As the court of appeals has repeatedly noted, Rule 59(e) is “an extraordinary remedy which should be used sparingly.” Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006) (citations omitted). A Rule 59(e) motion “does not provide a vehicle for a party to undo its own procedural failures or to introduce new evidence or advance arguments that could and should have been presented to the district court prior to judgment.” Quality Cleaning Prods. R.C. v. SCA Tissue N. Am., LLC, 794 F.3d 200, 208 (1st Cir. 2015) (citations and internal punctuation omitted). Consequently, this court may grant a motion to amend judgment only “if the original judgment evidenced a manifest error of law, if there is newly discovered evidence, or in certain other narrow situations.” Glob. NAPs, Inc. v. Verizon New England, Inc., 489 F.3d 13, 25 (1st Cir. 2007) (citations omitted).

         Here, as noted above, plaintiffs assert the court committed a manifest error of law in construing New Hampshire law to permit enforcement of their contractual waivers of negligence claims. Although it is not entirely clear that each of the plaintiffs' arguments advanced on reconsideration was fairly presented in opposition to summary judgment, the court will address them nonetheless.


         While it may sometimes operate in ways that are harsh, and differently from the rule in other states, New Hampshire's law on exculpatory contracts is clear: written contracts waiving negligence claims are enforceable if those contracts do not violate public policy, a reasonable person would understand the impact of the waiver, and the asserted claims fall within the contemplation of the parties when they executed the waiver. McGrath, 158 N.H. at 542. As the court previously held, all of those conditions are met in this case and the waivers are enforceable under McGrath.

         Plaintiffs' memoranda are difficult to follow but they seem to be positing different theories of avoidance than those pressed in their opposition to summary judgment. On reconsideration they seem to say that their instructor/guide acted “recklessly” by providing inadequate instruction and guidance on the snowmobile tour - riding well ahead of the group, traveling at excessive speeds, and compelling them to drive beyond their limited (novice) abilities in order to catch up with him. That is, plaintiffs characterize defendants' failure to adequately instruct in proper snowmobile operation, their failure to properly guide the tour, and their failure to “make a good faith effort” to insure their safety as “recklessness” amounting to “bad faith.” Thus, say plaintiffs, defendants breached the implied covenant of good faith and fair dealing implied in every New Hampshire contract, so the contract's waiver of negligence provision should not be enforced against them. Plaintiffs also add that the contractual waivers are unenforceable because defendants' bad faith contract performance contravenes public policy and enforcement of such waivers would place public safety at risk.

         Plaintiffs' general argument suffers from two basic flaws. First, even construing their complaint (as well as the evidence presented in opposition to summary judgment), in the light most favorable to them, it does not fairly describe conduct on the part of defendants that rises to the level of “recklessness” -at least not of the sort that might render the contractual negligence waivers unenforceable. And, second, even if defendants had “recklessly” performed their obligations under the parties' contract, or even if they “failed to make a good faith effort” to ensure plaintiffs' safety, that fact would not, under the circumstances of this case, constitute a breach of the implied covenant of good faith and fair dealing. Nor would it give rise to a basis for invalidating their contractual releases on public policy grounds.

         I. Plaintiffs' Assertions of ...

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